Legal Analysis Workshop: Techniques and Resources for Group Assignment

1. ELEMENTS D2 & D1 POWER POINT SLIDES Class #25 Friday, October 27, 2017 National Black Cat Day National Frankenstein Day

2. MUSIC: ISAAC ALBENIZWORKS FOR PIANO (1880-99)Alicia de Larrocha, Piano (Recordings1959, 1992) FAJER EXAM TECHNIQUE WORKSHOP (TWO INTERCHANGEABLE PRESENTATIONS) • Mon. Nov. 6 @ 12:30-1:50 pm in Room F109 • Thu. Nov. 9 @ 12:30-1:50 pm in Room E352

3. LAST INPUT FOR GWA#2:Thoughts from GWA#1 • Formatting (8/23) • Two Sides (41T-37R) • Accuracy w Facts (Overstatement Unhelpful) • Using Legal Tests • Understand How They Work & Their Original Context • Explain/Defend Your Application • Be Willing to Concede Non-Crucial Points • Stay onTopic (Power & Control ≠ NL)

4. LAST INPUT FOR GWA#2:Available Resources (on CP by early Sunday) • Slides & Briefs on Relevant Cases • Toolboxes re 1st Possession (IM2) & Escape (IM3) • Links re Externalities & Internalization (IM2) • GWA#1 Comments/Student Answers Memo • GWA#1: Comments on 2017 Work (Posted as Completed through Noon on 10/31) • Midterm Comments/Student Answers Memo • Old Exam Q Comments/Student Answers • 1st Possession of Island (2007) • Escape of Gesture (2012)

5. Group Written Assignment #2 DUE TUE 10/31 @ 9:00 pm Coordinators: Get Pseudonyms in Advance & Double-Check Formatting Requirements Before Submission QUESTIONS ? • Today • By E-Mail Until Sun 10/29 @ 11:59 pm

6. 2012 EXAM Q1A (Escape): Human GesturesNote re Mislabelling Online: Take Responsibility!!Under ACs, does L-Bow retain sufficient property rights to the EG to prevent use of EG in marketing campaigns? Arguments re Protecting OO’s Labor/Industry?- Little L-Bow Effort in Doing/Creating EG (But Cass Idea)- Possible Effect on Value of EG for Charity- Significance of L-Bow Investment in Training & B-Ball Skills- Differences between BB Use & Cane-Aid Use? URANIUM (for L-Bow) RADIUM (For BB & CA)

7. Argument By Analogy Applying Three Common Approaches Described in Course Materials: • (DQ2.09) Significance of Factual Similarities (URANIUM: Done) & Differences (RADIUM) • (DQ2.10) Usefulness of Doctrine (URANIUM) • (DQ2.11) Usefulness of Alternatives (RADIUM) For Each, I’ll Talk A Little About How to Do Generally, Then We’ll Try in This Context

8. Argument By Analogy RADIUM DQ2.09: Factual Differences? Last Time • Living v. Dead: Mildly helpful argument that parts of ACs don’t fit well. • Whales = Greater Difficulty of Capture/Size/Value: Might mean want stronger protection of OO rights. Other Factual Differences? Can You Construct Relevant Arguments Around Them?

9. Argument By Analogy2. Usefulness of Doctrine Qs About Individual Rules or Factors • Can you sensibly apply some or all of the legal tests in the new context? • Are the purposes behind the rules relevant in the new context?

10. Argument By Analogy2. Usefulness of Doctrine • Overall Q: Is the doctrine targeting the right concerns? • Are there important concerns raised by the precedent that aren’t relevant in the new context? • Are there important concerns raised by the new context that weren’t relevant in the precedent? • Do the factors tend to favor disputants who we think ought to win? • Reasonable to have Two-Sided Discussion re Particular Factors or Legal Tests (Might be helpful b/c …. Might be problematic b/c …. On balance ….)

11. Argument By AnalogyDQ2.10: Usefulness of Doctrine Individual Escape Factors Whose Relevance is Pretty Clear to Disputes re Whale Carcasses URANIUM?

12. Argument By AnalogyDQ2.10: Usefulness of Doctrine Individual Escape Factors Whose Relevance is Pretty Clear to Disputes re Whale Carcasses (Arguably used in Taber & Bartlett): • Marking/Finder’s Knowledge • Rewarding Labor/Protecting Industry • Abandonment (by Compulsion)/Pursuit • Time/Distance (though time frame may be different than for living animals)

13. Argument By Analogy Arguments • Based on Factual Comparisons and (2)Based on Usefulness of Doctrine Often Overlap:

14. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2)Based on Usefulness of Doctrine Often Overlap: (1) Factual Comparison: OO can attach identifying marks to both escaping animals and whale carcasses. • ACs reward OOs who use strong marks that help identify the animal and give notice to Fs of prior claim • For same reasons, good idea to reward OOs of whale carcasses who use strong marks • Thus, this similarity supports using ACs

15. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2)Based on Usefulness of Doctrine Often Overlap: (2) Usefulness of Doctrine: ACs factor we called “marking” (Manning; Albers), rewards OOs who use strong marks that help identify the animal and give notice to Fs of prior claim. • OO of whale carcass can attach identifying marks that serve the same purposes. • Thus, it is a good idea to reward OOs of whale carcasses who use strong marks, which makes “marking” a useful factor to use.

16. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2)Based on Usefulness of Doctrine Often Overlap: • Overlap is logical: • Concerns addressed by the legal tests are made relevant by the factual setting. • Factual comparisons are made relevant by the way the doctrine operates.

17. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2)Based on Usefulness of Doctrine Often Overlap: • For XQ2, if you see overlapping arguments, you only need to give me one of them • BUT useful to practice approaching analogy question from both directions b/c sometimes you will find it easier to see a useful point looking from one angle than from the other. E.g., • From (1): Key factual difference that ACs don’t address • From (2): Doctrinal rule that picks the wrong winners

18. Argument By AnalogyDQ2.10: Usefulness of Doctrine Factors Less Clearly Relevant? • Natural Liberty • Maybe NL = carcass is floating free • Pros & Cons: Should Consider: • LANGUAGE: E.g., “Provide for itself” v. “No artifical restraint” • UNDERLYING POLICIES : I did some in Class #20

19. Argument By AnalogyDQ2.10: Usefulness of Doctrine Factors Less Clearly Relevant? • Taming or Intent to Return • Could mean simply anchoring the carcass • Pros & Cons include: • Anchoring similar b/c labor expended to maintain control • Maybe unnecessary b/c can reward anchoring using NL or general policy rewarding useful labor

20. Argument By Analogy3. Usefulness of Alternatives • Identify alternative approaches that might be used to address the new context • For 1st Possession might include: auction, lottery, state ownership, most deserving, etc. • For Escape might include: F always wins, OO always wins, registration systems, salvage(= alternative, not application of ACs) • For other possibilities, look at old model answers (some available soon)

21. Argument By Analogy3. Usefulness of Alternatives • Identify alternative approaches that might be used to address the new context • Don’t spend time on alternatives that seem fairly stupid or unlikely or impractical • Could award carcass to oldest whaler, but this would be stupid because … • Could award carcass to finder where internal temperature of carcass had fallen below 45° F, but this would be very difficult to apply in practice because of absence of reliable thermometers and logistics of measuring inside carcass …

22. Argument By Analogy3. Usefulness of Alternatives • Identify alternative approaches that might be used to address the new context • Discuss the pros and cons of using each possible alternative instead of the proposed analogy • Ideally provide bothpros and cons for each • Can consider fairness, cost, ease of administration, incentives created, whether the right Qs are being asked, etc.

23. Argument By Analogy3. Usefulness of Alternatives • Identify alternative approaches that might be used to address the new context • Discuss the pros and cons of using each possible alternative instead of the proposed analogy • You can identify possible alternatives and common pro/con arguments from class and from model answers. However, only way to get proficient enough to do well under exam conditions is PRACTICE.

24. Argument By AnalogyUsefulness of Alternatives Radium: DQ2.11: One Particular Alternative Would salvage be a better way to resolve anchored whale cases than using the escaped animal cases? Why or why not?

25. Argument By AnalogyUsefulness of Alternatives RADIUM: DQ2.11: Would salvage be better than using the escaped animal cases? Might Consider: • Splitting Rewards v. One Side Takes All (& Labor?) • Rule Most Likely to Save Most Whale Carcasses • Ease of Application: • ACs = multiple factors = complex • But maybe hard to do salvage where property must be cut up and altered to take on board

26. Argument By Analogy3. Usefulness of Alternatives Ease of Administration: Escape • Escaping ACs not bright line rule, so complex to administer (lots of factors) • 2 very clear rules always available for Escape • Absolute Ppty Rights (if OO can identify it, OO wins) • Complete loss of pptyrts at escape = Finder’s Keepers • Although Usually Other Problems with These Bright Line Rules • incentives created, whether the right Qs are being asked, etc.

27. Argument By Analogy Applying Three Common Approaches Described in Course Materials: • Significance of Factual Similarities & Differences (DQ2.09) • Usefulness of Doctrine (DQ2.10) • Usefulness of Alternatives (DQ2.11) Questions?